FABIO JOSE PALACIO, PETITIONER V. UNITED STATES OF AMERICA
No. 90-6275
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit
Brief For The United States In Opposition
OPINIONS BELOW
The judgment order of the court of appeals (Pet. App. 1-2) is not
reported, but the judgment is noted at 916 F.2d 720 (Table).
JURISDICTION
The judgment of the court of appeals was entered on September 17,
1990. The petition for a writ of certiorari was filed on November 19,
1990. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTIONS PRESENTED
1. Whether a warrantless search of containers that petitioner
picked up from an international flight was reasonable where Customs
agents had previously determined that cocaine was inside at least one
of the containers and all of the containers were kept under constant
surveillance.
2. Whether petitioner understood and voluntarily waived his Miranda
rights.
STATEMENT
After a jury trial, petitioner was convicted of possession of more
than five kilograms of cocaine with intent to distribute it (21 U.S.C.
841(a)(1)) and conspiracy to commit that offense (21 U.S.C. 846). On
remand after an appeal by the government on a sentencing issue, the
district court sentenced petitioner to concurrent prison terms of 151
months on each count, to be followed by a five-year term of supervised
release. Pet. App. 5-6. The court of appeals affirmed in an
unpublished judgment order. Pet. App. 1-2.
1. On June 7, 1988, a shipment of 60 styrofoam coolers, purportedly
containing red snapper fish, arrived at Miami International Airport on
a Challenge Airlines flight from Panama and Costa Rica. A Customs
Service inspector inserted a probe into several of the coolers and
discovered a white powdery substance inside one cooler that
field-tested positive for cocaine. Customs agents then placed all of
the coolers under surveillance. Gov't C.A. Br. 3-4.
Petitioner came to the Challenge Airlines warehouse later that
evening and loaded all 60 coolers onto a truck. He drove the truck to
a Miami business called Riverdale Farms, where he parked it and drove
off in another car. The parked truck was kept under surveillance at
all times. Gov't C.A. Br. 5-6. At about 5 a.m. the next morning,
petitioner returned to Riverdale Farms with his son Cesar and a man
later identified as Luis Maya. After transferring several coolers
from the truck onto a Riverdale Farms van, petitioner and his son
drove off in the van and were immediately arrested. A subsequent
search revealed that ten of the 60 coolers (consecutively numbered 45
to 54) were inside the van, and that each of those ten coolers
contained several packages of cocaine concealed underneath a false
panel. The total weight of the cocaine seized from the van was 59.86
kilograms. Gov't C.A. Br. 6, 8. /1/
The arresting officers advised petitioner of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966), immediately following his
arrest, at which time petitioner indicated he understood those rights
and stated, "You caught me. I will talk to you." Petitioner then
admitted that he knew cocaine was inside the coolers and that he was
transporting it to his apartment. Later, at a Drug Enforcement
Administration office, petitioner was provided with a form setting
forth his Miranda rights in Spanish. He signed a written waiver of
his rights, then made more detailed admissions of guilt. Petitioner
said he had learned the night before at a meeting in his home that
cocaine was inside coolers numbered 45 to 54 and that he was supposed
to transport the coolers to his home where he would receive further
instructions. The interviewing agent subsequently prepared a
handwritten statement, which was translated into Spanish for
petitioner. After making some corrections, petitioner signed the
statement. Gov't C.A. Br. 7-8.
2. Petitioner moved to suppress the cocaine as the fruit of an
unlawful search and he moved to suppress his post-arrest statements on
the ground that he did not validly waive his rights under Miranda.
The district court denied those motions, and petitioner was convicted
at trial.
The court of appeals affirmed. Pet. App. 1-2. The court held that
the cocaine was properly admitted because the search was appropriate
under the extended border search rationale. Pet. App. at 2. The
court rejected petitioner's other claims on appeal without discussion.
Ibid.
ARGUMENT
Petitioner concedes (Pet. 22, 23-24) that the Customs agents'
probing of the coolers at the airport was a legitimate border search,
but he renews his challenges to the introduction at trial of the
cocaine seized from the van he was driving and to the introduction of
his post-arrest statements.
1. The court of appeals correctly held that the coolers in the van
were properly seized and searched "under the extended border search
rationale." Pet. App. 2. The Eleventh Circuit, like other courts of
appeals, has held that an extended border search satisfies the Fourth
Amendment when the government can show (1) that the searched object
has crossed the border; (2) that there has been no change in the
object since it crossed the border; and (3) that the officers making
the search had reasonable suspicion of criminal activity. See, e.g.,
United States v. Garcia, 672 F.2d 1349, 1367 (11th Cir. 1982); see
also United States v. Espinoza-Seanez, 862 F.2d 526, 531 (5th Cir.
1988); United States v. Whiting, 781 F.2d 692, 696 (9th Cir. 1986).
Petitioner concedes (Pet. 15) that under this established standard
his Fourth Amendment claim must fail. There was no dispute that the
coolers were brought to the airport in Miami on a flight from Central
America. The Customs agents ensured that there was no change in the
contents of the coolers by keeping them under continuous surveillance
from the moment they discovered that one of the coolers contained
cocaine. And petitioner cannot reasonably dispute that finding
cocaine in one container during a random test gave Customs agents at
least reasonable suspicion to believe that other coolers in the same
shipment likewise contained cocaine. /2/
Petitioner argues, however, that the extended border search
doctrine should not apply here because "the cases seem to rely on
other facts as well" (Pet. 15). First, he argues that the court of
appeals should have attached significance ot the fact that this case
involves 60 containers, only one of which had previously been
determined to contain cocaine (Pet. 15, 18-19, 23-24). Petitioner
does not explain why this fact matters, and the previous courts of
appeals' decisions involving extended border searches -- in most of
which none of the containers had previously been searched -- do not
indicate that the analysis would be any different if one of the
packages had previously been opened and had confirmed the officers'
suspicions. See United States v. Richards, 638 F.2d 765 (5th Cir.
1981) (upholding, under similar circumstances, a warrantless search of
a package containing ten smaller packages, three of which had
previously been opened and found to contain heroin).
Second, petitioner argues (Pet. 15, 18, 19) that the search in this
case was unreasonable because the officers failed to get a warrant to
search the previously unprobed boxes even though they had "ample time"
to do so. /3/ The applicability of the extended border search
exception to the warrant requirement, however, does not turn on
whether the officers could have secured a warrant before conducting
the search. See, e.g., United States v. Whiting, 781 F.2d 692, 695
(9th Cir. 1986). The rationale of the exception is that a package may
be searched at the border without a warrant or probable cause, and the
owner of the package does not acquire sufficient additional privacy
interests in the package to trigger the warrant and probable cause
requirements when the package remains in the same condition as when it
crossed the border.
Finally, petitioner argues (Pet. 15) that the search was
unreasonable because it "took place at a time and location distant
from the initial probe." While the passage of time and distance might
in some cases make it more difficult for the government to show that
the containers were in the same condition when they entered the
country as when they were searched, there is no question that the
government was able to satisfy that requirement in this case. The
coolers were kept under constant surveillance, and the search took
place only 12 hours after petitioner picked up the coolers from the
airport, during most of which time the coolers sat unattended but
under constant surveillance at the airport or in the truck at
Riverdale Farms.
2. There is no merit to petitioner's claim (Pet. 25-32) that his
post-arrest statements should have been suppressed because Officer
Guzman's command of Spanish was insufficient to advise petitioner of
his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Evidence
was introduced at the suppression hearing and at trial that petitioner
was advised of his rights orally in Spanish immediately following his
arrest, that he indicated he understood his rights, and that he then
volunteered, "You caught me. I will talk to you." While Officer
Guzman did not claim to speak fluent Spanish, he had at least a
working knowledge of the language that came from his upbringing in a
bilingual home, from Spanish training before graduation from the
United States Border Patrol Academy, and from service during the past
13 years as a Spanish translator. See Gov't C.A. Br. 26. Thus,
regardless of the trial court reporter's alleged difficulty in
translating some of Guzman's statements in Spanish (Pet. 28-31), there
was ample evidence to support the district court's conclusion that
petitioner understood his rights. The court's finding on that issue
is confirmed by the fact that petitioner claimed to have no trouble
understanding the threats and promises that he claimed were made to
induce him to confess, that he subsequently executed a written waiver
of his rights in Spanish, and that petitioner then made and signed a
statement. See Gov't C.A. Br. 26-27.
Nor is there merit to petitioner's claim that his statements were
involuntary because the agents coerced him. The agents in question
both denied making promises or threats to solicit petitioner's
statements, and the district court ruled that the statements had not
been coerced. See Gov't C.A. Br. 28-32. There is no basis for this
Court to review the district court's credibility determination on that
point.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
SEAN CONNELLY
Attorney
JANUARY 1991
/1/ Maya, who had taken the truck after petitioner placed the ten
coolers on the Riverdale Farms van, was also arrested. The remaining
50 coolers were searched and found not to contain any drugs. Maya was
tried together with petitioner and was acquitted.
/2/ Petitioner argues (Pet. 20-24) that, since the police had
probable cause to search only the containers inside the van, the
automobile exception to the warrant requirement did not apply. The
issue whether the automobile exception applies in such cases is raised
in California v. Acevedo, No. 89-1690 (cert. granted Oct. 1, 1990).
If the Court decides in Acevedo that probable cause with respect to
packages contained in cars is sufficient to trigger the automobile
exception, the search in this case would be lawful on that basis.
Regardless of how Acevedo is decided, however, the warrantless search
here is independently sustainable as an extended border search.
/3/ Petitioner concedes that he retained "no legitimate expectation
of privacy" in the one cooler previously determined to contain
cocaine. See Illinois v. Andreas, 463 U.S. 765, 772 (1983).